Smoke that limits visibility on Florida roads is an ongoing and extremely dangerous problem. It causes numerous auto accident injuries, and, in some cases, deaths. This smoke is even more dangerous on high-speed, limited-access highways such as I-10, I-75 and I-95. It is also more dangerous at night and in Florida’s cooler months, when low-lying fog is common.
Forest and brush fires are natural occurrences, especially in Florida, a state that has the most lightning strikes. However, fires have other causes that can be avoided.
Sometimes, intentional wrongdoing, arson, causes fires and, sometimes, they are caused by carelessness. Negligence in burning trash and other fire-related activities by campers or homeowners are examples of causes that can easily be avoided. Faulty equipment or carelessness with construction, logging, and railroad equipment can cause these fires, so can traffic accidents themselves.
Prescribed or “controlled” burns relate to the management of Florida’s forests. Recently, Florida’s Commissioner of Agriculture noted a significant reduction in prescribed burns in 2012 because of drought conditions. The Florida Forest Service devised a plan to address future use of prescribed burns that carefully balances against Florida’s growth and urbanization. It is important that those who use these fires take great care to do it right.
For auto accident personal injury victims of crashes caused by smoke that reduces or nearly eliminates visibility, those who suffer personal injury and the families of those who suffer death in such tragic accidents, rules vary based on circumstances and facts. Wanting to determine fault and bring accountability to wrongdoers is normal, so much so that it is enshrined in the Florida Constitution as a basic right: “SECTION 21. Access to courts – the courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”
Actions of Drivers
No matter who, if anyone, is responsible for the smoke on a highway, the actions of the drivers involved in these wrecks will be closely examined. This will bring into play the obligation of vehicle operators, whether passenger vehicles or tractor-trailer rigs, buses or heavy equipment, to drive with reasonable care under the circumstances. It will be examined and complicated by the following questions:
What is the safe thing to do in a cloud of smoke? Was there a safe way to pull off the highway? How could the drivers even know where such a safe place was?
Each driver is responsible to drive at a speed appropriate for the conditions, but many drivers may worry about slowing down and being hit from behind by vehicles that do not slow down. Investigators consider all these factors. Unfortunately, in the worst of these accidents, drivers and passengers may have died or been injured too badly to help reconstruct the accident.
Pre-Accident Condition of Drivers
Another factor investigators always look at is the pre-accident condition of each driver. This includes whether any drivers involved were impaired by alcohol or drugs, or distracted by cell phones or other devices.
For professional drivers especially, pre-accident condition examines the operator’s driving history. If the driving record is poor, investigators will then look at whether the trucking company was or should have been aware of that driving record, and whether the company took reasonable precautions to protect the public from poor drivers. Training, supervision and licensing are investigated, in addition to the amount of hours driven by truck drivers and the accuracy of driver logs. Trucking companies and their drivers are governed by strict rules with the intent of safety and saving lives. It is necessary for drivers to be alert and capable of making the right driving decisions when operating such large vehicles to avoid trucking accident injuries.
Responsibility for Smoke on the Highway
Who is responsible for the presence of smoke on a highway? Lightning provides its own answer when it is the initial cause. However, there are times and circumstances when carelessness in working with fire, or failure to take precautions as to when and under what weather and wind conditions to set “controlled” burns, can add up to negligence and bring liability. After all, without the smoke, the accident likely would not have occurred. In a case of a controlled burn alleged to have caused a tractor-trailer to crash into a small car killing people, the appeals court for the North Florida area held the company responsible for the fire that put smoke on the highway at 9:30 at night was held potentially liable for losses even by the truck driver who himself was uninjured but lost his job after the accident. Waters v. ITT-Rayonier, Inc., 493 So.2d 67 (Fla. 1st DCA 1986). Negligence in fire fighting, especially when that work is done by government, raises questions of whether sovereign immunity has been waived by statute and whether there are any exceptions to that waiver that might defeat the ability to assess liability against the government. That issue has been addressed elsewhere. Myers v. McGrady, 628 S.E.2d 761 (N.C. 2006) (multi-vehicle collision at night in smoke and fog on I-95).
Vehicles on a Smoky Highway
Another issue emerges and is addressed in part by a newly released Florida Department of Law Enforcement report. This report analyzes the role of the Florida Highway Patrol in the closing of I-75 due to smoke from a fire on Paynes Prairie near Gainesville, Florida in January 2012 and then reopening I-75 with subsequent major collisions with numerous deaths and injuries. Document-FDLE-I-75-Incident-Review
While much of the investigation is yet to be done, the report points to factual issues that open the question of potential liability by the State of Florida. The State has, by statute, waived its sovereign immunity for liability for its negligence, but that waiver is subject to rules that give leeway to state entities in taking actions in dealing with many issues, including public safety. Questions will arise about whether negligence was involved in the decision to reopen I-75 to traffic the night of this tragic accident. Investigators will also examine whether there were warnings about the potential for smoke resettling on the highway and blinding drivers, and, if so, whether the warnings were adequate, and whether FHP patrol cars could have done more to warn and control the vehicles traveling on the reopened interstate.
The Florida Highway Patrol, Florida Forest Service and the Florida Department of Transportation adopted a uniform set of warning signs to be used for smoke on Florida roads, including signs for use at times of prescribed burns. The State’s waiver of sovereign immunity also contains limitations on the amount that can be recovered for wrongful death and serious injuries, although recoveries exceeding the caps can be made through legislative claims bills. Section 768.28, Florida Statutes.
Smoke on Florida’s highways will continue to be a problem. The first thing we can do is be careful to prevent fires from starting or, if using prescribed or controlled burns for the management of underbrush and forests, taking every reasonable step to protect the public from the danger of smoke on the highways. There is no room for shortcuts; lives are at stake. Proper planning, training and diligence by responsible parties are vital.